In Newfoundland Nurses, the SCC essentially abolished “adequacy of reasons” as a stand-alone ground for judicial review. Rather, the SCC stated that an officer’s reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. The SCC further stated that (citations removed):

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

The fact that there may be an alternative interpretation of the agreement to that provided by the arbitrator does not inevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

As one immigration lawyer put it, the DOJ has since argued that under the Newfoundland Nurses reasonableness standard the Federal Court must uphold a tribunal’s decision as long as it falls within the most extremely close to unreasonable range of possibilities that the most extreme officer dictates. In one case of mine, the DOJ even argued that there could basically be no reasons so long as the Federal Court thought that the decision was a possibly correct one that the tribunal could reach. But is this really the case?

In a previous blog post I mentioned a case in which the Federal Court pushed back against this rigid interpretation.

Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page.

In my view, no amount of “supplement[ing],” to quote Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, salvages the officer’s decision. The Regulations clearly require that only a “substantial” number of the duties be performed. That is the test. The officer in this case singles out only parts of two of the eight main duties from NOC 6211 and on that basis concluded that Ms. Benoit’s experience at the Granite did not qualify.

In the case at bar, we ended up at the hearing looking for evidence in the record and speculating as to what the Board may have meant. The reviewing court is not there “to supply the reasons that might have been given or make findings of fact that were not made”. It does not matter that the decision is rendered orally or after deliberations.

These unanswered questions lead me to conclude that, while the decision may be within a range of possible, acceptable outcomes, it is not defensible in respect of the facts and law. Furthermore, in my view, while there may be some degree of transparency in the Officer’s approach, I find the reasons neither justifiable, nor transparent.

In reaching this conclusion, I am mindful of the fact that this Court should not unnecessarily parse the Officer’s decision and that I should consider whether there is, in the record, evidence upon which the Officer could have reasonably reached the conclusion she did. Because of my unanswered questions and my inability to divine how the Officer chose to disregard key evidence from Mr. Onley and the Department of State, I am unable to apply Newfoundland Nurses to save the impugned decision.

The list of cases goes on, and covers a wide variety of areas of immigration law. As a result of numerous Federal Court cases, including those mentioned above, the current state of the application of Newfoundland Nurses is perhaps best summarised in two paragraphs of the Federal Court’s recent decision in Millik v. Canada (Citizenship and Immigration Canada), 2015 FC 82, where Justice Boswell stated (citations removed):

Visa officers render discretionary decisions which are reviewable on the standard of reasonableness. The Supreme Court has stated that reasonableness requires “justification, transparency and intelligibility within the decision-making process” as well as a decision which falls “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The insufficiency of reasons is not “a stand-alone basis for quashing a decision.” However, reasons must “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes.” The Court does not have a licence to fill in the gaps in a decision or to speculate as to what the decision-maker was thinking.

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Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author

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DISCLAIMER

Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.